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Supreme Court backs press in major libel ruling

Victory for the Star as landmark ruling creates 'responsible communication' defence for broadcasters, writers and bloggers.

By Tonda MacCharlesOttawa Bureau

Tues., Dec. 22, 2009

OTTAWA – In a landmark ruling on freedom of expression, the Supreme Court of Canada has created a new legal defence to libel lawsuits that would shield journalists who fairly and responsibly report stories of public interest.

The new defence, dubbed "responsible communication" by the country's top court, gives greater protection to broadcasters, writers and bloggers who diligently try to verify the accuracy of information in their reports, even if every statement cannot later be proven to be true.

It is a huge legal victory for the Toronto Star, which along with a broad coalition of Canadian media outlets, and the Canadian Civil Liberties Association, had called for just such a defence.

"It's probably the most important decision the Supreme Court's ever decided on the law of libel," said Star lawyer Paul Schabas. "It modernizes our laws to better reflect freedom of speech."

"This means there will be more information put out to the public to scrutinize what public officials do and to debate matters of public interest."

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"This is an historic victory for Canadians,” said Toronto Star Editor Michael Cooke. “We have long argued that serious investigative reporting, a Star specialty, needs the backing of the courts to enable us to shine a light on wrongdoing. We see this Supreme Court decision as a ringing endorsement of the Star's efforts over many years to fight injustice."

The decision breaks new ground for Canadian common law, bringing it in line with decisions in the United Kingdom, as well as Australia, New Zealand, South Africa.

"Freewheeling debate on matters of public interest is to be encouraged and must not be thwarted by 'overly solicitous regard for personal reputation,'" said Chief Justice Beverley McLachlin, writing for a unanimous court.

The ruling sets the stage for the law to be applied to new trials in two Ontario cases, one involving the Toronto Star, the other involving the Ottawa Citizen.

The high court said the current law of defamation in Canada doesn't give enough weight to the Charter guarantee of free expression, because it provides no protection for statements "if they cannot be proven to be true." The law, said McLachlin, should be changed to provide "greater protection" for statements that are "reliable and important to public debate."

"To insist on court-established certainty in reporting" may prevent communication of facts a reasonable person would accept as reliable "but also of inhibiting political discourse and debate on matters of public importance and impeding the cut and thrust of discussion necessary to discovery of the truth."

McLachlin said the right to free expression "does not confer a license to ruin reputation" but said that with the Charter entrenching the "constitutional value" attached to free expression, "the balance tips" toward broadening the defences available to media.

It means the Star will be able to argue it acted "responsibly" when it published an article about Ontario developer Peter Grant, a friend and supporter of former premier Mike Harris, who had applied to expand a private golf course.

Grant sued the Toronto Star, over statements that local residents believed the golf course on cottage lakeside property was already a "done deal" given Grant's Tory ties. He said the story was based on innuendo and was defamatory.

Under the new defence, the question of whether a story is about a "matter of public interest" is up to a judge to decide. But a jury would decide whether a newspaper or broadcaster took all "reasonable steps" to ensure its accuracy.

An Ontario trial judge determined the Grant golf course application was a matter of "local" not general public interest. But the high court today said the Grant matter was clearly "of public interest" as it related to "issues of government conduct."

"Public" interest, the court said, is not merely that which titillates the public, such as the private lives of well-known people. "Mere curiosity or prurient interest is not enough," McLachlin wrote.

But it may be engaged depending on the prominence of a person in the story.

"The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality," the court said.

Grant's lawyer Peter Downard said Tuesday the ruling is an "even-handed" judgment and tries to strike a typically Canadian balance between privacy and public reporting. But he said that the final call rests with a jury is a "tremendous safeguard" for Canadians. He suggested he believes Grant would still be able to win at a new trial because that "key question" of whether reporter Bill Schiller, now the Star's Beijing correspondent, acted responsibly goes to a jury of six community members.

The new defence does not go as far as the U.S. model, which requires a public figure plaintiff to show "actual malice" on the part of a reporter. The Supreme Court of Canada said in that contest between free expression and reputation protection, "free expression decisively won the day."

The high court said the "middle road" it has chosen provides a "a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society."

It listed eight factors for a jury to consider when weighing whether a publication acted responsibly:

-the seriousness of the allegation or whether the "stinging" statement was a passing irritant or a blow that devastates a person's reputation and career

- the public importance of the matter

- the urgency of the matter

- the reliability of the source of information

-whether the "other side" of the story was duly sought and fairly reported. It is "inherently unfair" to publish, said the court, without giving the target an opportunity to respond

-if the statement is justifiable, necessary to the communication

-whether a reported statement is "reportage" or needless repetition of a libellous

-and any other considerations relevant to the way the story was reported

The high court said it would also allow the Ottawa Citizen to argue the new defence in a libel lawsuit over articles published about an OPP officer who was criticized by New York authorities and his superiors after he went to Ground Zero following the 9/11 attacks with his pet dog to help search for survivors.

"When Cst. Cusson represented himself to the New York authorities and the media as an OPP or RCMP officer, he sacrificed any claim to be engaged in a purely private matter. News of his heroism was already a matter of public record; there is no reason that legitimate questions about the validity of this impression should not have been publicized too."

Cusson's lawyer Ronald Caza said his client will now review the decision, but he called it a "groundbreaking decision" that will now shift the focus onto journalists and their practices.

Citizen lawyer Richard Dearden said the ruling is a "huge victory" that favours the publication of stories in the public interest, and will have the effect of increasing journalists' standards of practice, because "you have to be responsible."

"You can't phone at midnight and the presses are going to roll two minutes later and (say) well, we couldn't reach that person. That won't be responsible. But if you've given them fair opportunity to respond and they choose not to, that's up to them, you've done your job."

"It will be interesting to see how these communications advisers now are going to advise their clients. I don't think you can say 'no comment' anymore."

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